Whistleblower legislation: the what, who and when you can go public- in a fashion.

The Government will need votes from the independents to get whistleblower legislation

Mark Dreyfus

through the parliament, and one at least, Andrew Wilkie, speaks with authority when it comes to the subject. 

So differences between the Dreyfus bill of last week and the Wilkie bill introduced into Parliament last year and other best practice standards adopted in Queensland and the ACT, foreshadow further debate both on on big picture issues and fine points of detail. The Attorney General left the door open, in contrast to last week's media reform "take or leave it" debacle: 

"Given the complex nature of the issue I also consider that consultation should continue on the content and structure of the bill. If it becomes clear that the whistleblower scheme would benefit from legislative amendment I will be happy to bring them forward if this bill progresses."

Like most of you I'm waiting for the definitive analysis from Professor A.J Brown.
( Update 26 March: "Serious problems” that must be fixed, according to a report on Crikey (paywall) “Currently, I wouldn’t be supporting the bill,” Brown, who is also a director of Transparency International Australia, told Crikey. “There are too many things wrong with it in its current form to achieve its intended objectives. Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield. .It means public servants who blow the whistle on wrongdoing by politicians, including concerns about corruption or bribery, would not be protected. .... Brown’s second major concern is the sweeping exemption for disclosures about intelligence agencies.")

In the meantime a quick look at the big three: what is covered, who is covered and in what circumstances a person can disclose information to an outsider and still be protected.

What is covered
The Dreyfus bill is likely to get close to a tick for the broad range of matters covered by the definition of disclosable conduct. It goes far beyond the standard corrupt conduct, serious maladministration and serious or substantial waste of public money, to include a range of other conduct notably conduct that is "an abuse of public trust", that "unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons", or "results in, or increases, a risk of danger to the environment."

Who is covered
The Dreyfus bill includes a lengthy definition of "public official" that extends to a person employed by a contractor, and under Clause 70, to an individual that an authorised officer determines can be taken to be a public official. 

Whether this is good enough for Wilkie remains to be seen. 

His bill specifically included in the definition senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984. 

The parliamentary committee that Mark Dreyfus chaired in 2009 recommended ministerial and other staff employed under the MoPS act should be covered. The government responded in 2010 : The Bill  "will not authorise employees under the Members of Parliament (Staff) Act 1984 to make disclosures under the scheme. Disclosures will not be able to be made under the scheme about Members of Parliament. Allegations of wrongdoing by Members of Parliament should be addressed by the Parliament.Similarly, disclosures will not be able to be made under the scheme about Members of Parliament (Staff) Act 1984 employees."

External disclosures
Both bills set out circumstances where disclosure outside the system can qualify as a protected disclosure. Dreyfus is broader generally than Wilkie, the former opening up disclosure to any third person other than a foreign government official, the latter limited to disclosure to a journalist. 
(Update: Better wisdom. A.J Brown tells me "Wilkie is broader than Dreyfus on external disclosure -- not narrower... Wilkie makes it explicit that any person includes journalists, but still extends to any person than foreign public official.  Dreyfus is just not explicit on that, and much narrower in terms of other restrictions on when people can go public.")


And there are other differences. 

 For example, the Wilkie bill alone protects disclosure to a journalist without prior internal notification if a public official honestly believes on reasonable grounds that:

  (a)  the public official has information that tends to show disclosable conduct; and

  (b)  there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and

   (c)  it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.

On a separate issue, the Dreyfus bill alone limits the information that can be disclosed in this way to where disclosure on balance, is not contrary to the public interest. That's quite a tightrope for any public official to walk. What if disclosure would reveal major corruption - say the bribing of officials here or overseas - but would reveal information that (under the FOI act) is the subject of an absolute exemption on grounds disclosure would be contrary to the public interest as a cabinet document, or information that arguably could damage international relations? Disclose that at your own peril by the sound of it.

An exception to this public interest test applies where the information reveals substantial and imminent (another high hurdle) danger to the health or safety of one or more persons.

A companion piece while this is on the table should be a government response to the ALRC
Report 112 Secrecy laws and open Government in Australia that has had no attention as far as those on the outside can fathom since it was tabled in March 2010. The draconian s 70 of the Crimes Act that criminalises unauthorised disclosure certainly fails Wilkie's "Kessing test."

Some extracts from the bills on these key issues follow.

Look to the Budget for the white flag or further warfare in the battle to abolish the OAIC

 In the absence of any statement beforehand, the Budget on Tuesday will next indicate whether the government intends to maintain the position that it wants to legislate the Office of Australian Information Commissioner out of existence. 

The Freedom of Information Act Amendment (New Arrangements) Bill, before the Senate since October 2014 but not brought on for a vote is not among the bills reintroduced during the two days parliament met in April. 

The bill still gets a mention on Page 31 of the Senate list of Bills in the lapsed due to prorogation of the last session category.

As at COB on 19 July eight bills were introduced or reintroduced into the House of Representatives and 59 in the Senate.

Most, introduced by Labor and The Greens should be on a wish list instead, given Budget week is the only sitting before the PM says we are off to the polls. 

This includes Senator Ludwig's Private Member's Freedom of Information (Requests and Reasons) Bill, a bill opposed by the government and thus with no prospects of passage in this parliament at least, but Labor senators canvassed its benefits during debate on FOI.

Senator Wong asked for an explanation from the Attorney General why a question on notice to the Prime Minister about the government's performance on freedom of information remained unanswered three months later. The senator didn't get much of answer other than the Attorney General said a request to him in the same terms was complex, sought "very detailed data" over a two year period and the three months included the summer break... Hmm.

In debate that followed Senator Wong and Senator Ludwig slammed the government's record on transparency and freedom of information with Senator Ludwig making what amounts to a big call given 34 years of history:

 "Senator Brandis presides over the worst administration of FOI that this country has ever seen.."

Dreyfus reports, plenty of discussion to follow.

The Dreyfus Report on whistleblowers protection is very good in most respects and if acted upon would be a big step forward in this area, given the scant protection currently available to Commonwealth employees in respect of public interest disclosures, and the gaps or weaknesses in the current models operating in the various state schemes highlighted in the Whistle While They Work Report.

But there is plenty of scope for further argument and public debate over the detail-not just the media concern over limited coverage for external disclosures -and turning the report's principles into legislation could be a slow grinding process for the inevitable inter-departmental committee. A working scheme reflecting the necessary culture change to "if in doubt report" and respect and protection for those that do could be years away from fruition.

The Report proposes no changes to secrecy laws (the Australian Law Reform Commission is to report later this year) although it would clear things up through a recommendation that a whistleblower who makes a public interest disclosure as defined, through the proposed internal and external processes, would be immune from criminal or civil action, thus removing the shadow of Section 70 of the Crimes Act.

Nothing in the report goes to Freedom of Information reforms either (Minister Faulkner's second stage paper is expected in March) but there are a couple of references that deserve comment.

Chapter 4 discusses what types of information should come within the scope of a public interest disclosure. I agree that it shouldn't extend to a public servant who simply disagrees with government policy or one who unilaterally decides to leak for personal reasons, to make mischief or the fun of it. But there are some interesting definitional issues about what might constitute "a serious matter relating to a breach of public trust."

A discussion about the values of accountability, integrity and the public interest that should underpin the proposed Act [2.48] includes a statement that"governments have a right to consider policy and administration in private."

This overstates things to some degree, as, apart from cabinet deliberations, there has been no absolute protection for 27 years for Federal government deliberative process documents. In theory at least these processes have been open to scrutiny under the Freedom of Information Act, unless disclosure would be contrary to the public interest.The fact that policy is under development or a decision has not been taken can be a factor that counts against disclosure, but would not automatically or categorically ensure the matter is considered "in private." Other public interests-for example in informed debate and discussion of matters being considered by government- need to be weighed.

In apparent support for at least part of this principle the Report states [4.30]:

"The Freedom of Information Act 1982 provides for a general right of access to information with limitations. One area where the release of information is generally held to be against the public interest is the discussion, within government, of options that were not settled and that recommend or outline courses of action that were not ultimately taken. The reason for this is the potential for confusion or to mislead the public. Disclosures of that type would be unlikely to make a valuable contribution to the public debate and have the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached."

A footnote cites the High Court in 2006 in the McKinnon case as authority.

In the High Court decision the joint judgment of two of the three judges in the majority (two of the five who sat on the case) acknowledged [at 122] this was a "cogent ground" for the purposes of the issue of a ministerial certificate. No-one suggested- neither does the guidance issued by the Department of Prime Minister and Cabinet- that this will always be a sufficient consideration to automatically sway the balance in favour of non-disclosure. In two sentences they gave a tick to then Treasurer Peter Costello's claim (one of seven) to justify the issue of a certificate about why disclosure of information was contrary to the public interest, expressed by Costello as follows:

"The release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached. Decision-making processes are multi-layered and the documents reflect partially considered matters and tentative conclusions."

It's a fair way short of High Court authority for the proposition that release of information is generally held to be against the public interest where it reveals "discussion, within government, of options that were not settled and that recommend or outline courses of action that were not ultimately taken. The reason for this is the potential for confusion or to mislead the public."

In Chapter 8 the Report recommends protection for disclosure to the media only where it relates to serious and immediate danger to health or public safety, and only after a reasonable period has elapsed since an internal report and to the Ombudsman or one of the alternative authorised recipients (extends to members of parliament) and no satisfactory action has been taken.

We will hear plenty of argument about this along these lines, particularly as Dr AJ Brown clearly has reservations about this aspect of the Report.

Some of the reasoning for ruling out protection for other disclosures to the media seems a bit thin. For example [8.76] that "disclosures to the media concerning unsettled policy issues, national security, intelligence and defence could interfere with the proper processes of government." Disclosure of unsettled policy issues seem to be placed in august company.They could also in some instances clearly be in the public interest.

As Richard Ackland comments in today's Sydney Morning Herald there is a lot for the media and others to ponder including what the Report tells us about leaks:

"From mid-2005 to mid-2008 some 45 cases of leaking were referred to the federal coppers. Of those, four were sent to the Director of Public Prosecutions. Under the existing and inadequate procedures to protect "public interest disclosures", 21 bureaucrats were investigated in 2006-07 following a whistleblow. We don't know what happened to those complaints, if anything, because the outcomes are secret. No politicians were referred anywhere for leaking, not even for leaking classified, sensitive security information."

According to Chris Merritt in The Australian, Allan Kessing intends to keep going with his High Court challenge to Section 70 and his conviction, and if unsuccessful may seek a pardon.

Freedom of information advocacy: a global snapshot

Ninety five countries now have a right to information or freedom of information law.

But the goal of a universal right of access is still a long way off, according to a report released on 8 July by the Freedom of Information Advocates Network (FOIAnet). The report provides an analysis of the worldwide right to information (RTI) movement by region.
  
Lydia Medland, of Access Info Europe, lead editor, said 

“The report shows that advocates still have a long way to go to see their goal achieved of a universal right to information, however, it also clearly transmits the strength of the movement and their ability to effectively confront obstacles to change.”

The report is available at http://www.foiadvocates.net 

Regional reports cover Africa, the Americas, Australasia and Oceania, East and Southeast Asia, Europe, the Middle East and North Africa and South Asia.

The Australasia and Oceania Chapter  (Peter Timmins is the author) commences on page 35. Some extracts appear below. 

In summary:

While RTI laws are well established in Australia and New Zealand, limited progress on legislated rights has been made in the Pacific, with the Cook Islands the only country to enact a law to date. Tonga introduced a government wide information access policy in 2012.

Australia’s decision to join 58 other countries in the Open Government Partnership is likely to provide new impetus to advocacy efforts and discussion of transparent, open and accountable government in Australia and the region, and may encourage New Zealand and other eligible countries to follow suit.

In Pacific island countries there are hopeful signs. There has been widespread embrace of a ‘good governance’ agenda with accountability, transparency and advancement of human rights parts of the mix. Government aid donors and international NGOs continue to assist developments of this kind in ways respectful of the regional and cultural context. The Tonga experiment with a government wide policy approach may provide experience in developing a ‘pacific way’. The Extractive Industries Transparency Initiative and interest in anti-corruption measures is highlighting the need for more and better disclosure of government information. And regional ties are strengthening in ways that should enable media organisations and civil society groups to lift the profile of RTI issues and concerns.

Contacts for background and comment on the report are:

Toby Mendel                                                            Lydia Medland

Executive Director                                                   Research and Campaigns Coordinator

Centre for Law and Democracy                               Access Info Europe

Email: toby@law-democracy.org                             Email: Lydia@access-info.org

Tel: +1 902 412 0872                                               Tel +34 91 365 65 58 

www.law-democracy.org                                          www.access-info.org

Twitter: @law_democracy                                       Twitter: @Lydyact / @Access_Info

Extracts-Australasia and Oceania. Global Right to Information Update: An Analysis by Region, Freedom of Information Advocates Network

A reasonable period of cabinet secrecy.

Just on that 30 year rule which keeps Federal cabinet documents out of the public domain for longer than good governance requires, The Independent speculated over the weekend that the UK inquiry into the situation there is likely to result in a recommendation that it be reduced to 15 years. The report is to be released later this month.Hopefully food for thought for our policy makers. The Governance group at the 2020 Summit earlier this year apparently was thinking of recommending 10 years until Minister Faulkner entered the discussion resulting in a recommendation of 15 years. As I mentioned in the original post some state legislation gives most documents that could be described as cabinet documents exempt status under freedom of information laws for a shorter period than 30 years. In Queensland the last state to re-examine the issue the Government opted for 20 years despite the Solomon review recommending 10.

The Nikita O'Farrell tag doesn't quite do it.

Leader of the NSW Opposition John Robertson introduced the Government Information (Public Access) Amendment (Removal of Application Fee) Bill into parliament last week giving the O'Farrell government the opportunity to deliver on a commitment made in the lead up to the election. Or not, as the case may be. Not a bad political ploy but the bill will languish in the pile that goes nowhere unless the government feels inclined to act.

The bill might prompt someone at the Office of Information Commissioner to dust off the file opened in October 2011 for a public consultation on fees and charges, the purpose of which was  "to see whether the fees and charges provisions help to promote the objects of the GIPA Act to maintain open and accountable government by facilitating access to information at the lowest reasonable cost."  Nothing has been said in the year since, publicly at least.

Mr Robertson apart from rubbing the government's nose in an undelivered promise, had plenty to say about access to government information under the GIPA act, referring to "deliberate" overcharging, and some refusals for questionable reasons of opposition requests, with an agency claim that the board minutes of Infrastructure NSW were Cabinet-in-confidence sounding a bit rich.

While performance information beyond the anecdotal is thin, Mr Robertson's claim that this is "the most secretive government in this State's history" is way off the mark. 

Pick any government that pre-dates Greiner and the introduction of the Freedom of Information Act in 1989, for example, including any from the long list of Labor governments. The late Peter Wilenski described NSW in the late 70's early 80's as a 'bastion of secrecy' and no-one demurred. Throw in the later improved but still barren decade for the open government cause from 1995 where even ministerial media releases weren't posted on the internet during the Carr era so as to avoid leaving discoverable footprints, and pleas from the Ombudsman for reform were routinely ignored. All power to Nathan Rees, still there in Mr Robertson's team, for steps in the right direction in 2008-2009. 

As to this 'killer' line, 'Joe Stalin' might have better suited Mr Robertson's purpose:

You would have got more information out of the Soviet Union under Nikita Khrushchev than you do under Barry O'Farrell in New South Wales. 

(Comparing tyrants isn't all that useful but Wikipedia comments on "The Kruschev Thaw" as allowing some freedom of information in the media, arts and culture that "all together helped liberate minds of millions and changed public consciousness of several generations of people in the Soviet Union." Positively enlightened compared to old Joe.)

With GIPA two and a half years on,18 months of that overlapping O'Farrell's time in office, it's a mixed bag. Journalists tell me generally things are somewhat better than the pre-GIPA days, adding plenty of caveats and exceptions. But a steady stream of individuals pass on to me tales of woe and classic runarounds. Frustration at the long delay in the Office of Information Commissioner in dealing with review applications is also high on the list of grumbles, heightened where the agency goes its merry way despite a recommendation from the OIC that it think again. 

There is a dearth of published information about the operation of the GIPA act, agency compliance with publishing requirements, or performance in dealing with informal and formal requests - another OIC file that needs retrieving and a dusting.

The Government Information (Information Commissioner) Act 2009 requires (s 37), in addition to an annual report on the work and activities of the office, a report from the commissioner on the operation of the GIPA Act generally, across all agencies "as soon as practicable after 30 June in each year."  The act commenced on 1 July 2010. No report has been published to date for the year to 30 June 2011, nor so far for the period ending 30 June this year. I've asked on several occasions where things stand-months ago the commissioner told me she was in editing mode on the 2011 report. The parliamentary presiding officers and the Attorney General are to get a copy-maybe its stuck there?

No one asked about the s 37 report or much at all about agency performance when the NSW parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission held a brief meeting (one hour four minutes) in May with the Information and Privacy commissioners to discuss the 2010 and 2011 annual reports on the operation of the office. 

No one asked either about whether the NSW external review model with an ADT and OIC option but limited OIC powers was working as hoped, or could be improved. 

Questions, questions.

Answers, please?